Ellis v Bedford (Duke)
| Jurisdiction | England & Wales |
| Date | 1899 |
| Year | 1899 |
| Court | Court of Appeal |
Practice - Parties - Representative Action - Action on behalf of a Class of the Public -
The plaintiffs (six in number) sued on behalf of themselves and all other the growers of fruit, flowers, vegetables, roots and herbs, within the meaning of the Act for the Regulation of Covent Garden Market (9 Geo. 4, c. cxiii.), to enforce certain preferential rights to stands in the market, which they alleged to have been given to the class of growers by the Act. The sole defendant was the lord of the market:—
Held (Vaughan Williams L.J. dissenting), that there being a bonâ fide question as to the construction of the Act, the plaintiffs, as representing the class of growers, who had an interest in common, could maintain the action, but that the Attorney-General must be added as a defendant to represent the rest of the public who were interested in disputing the alleged preference:
Held, by Vaughan Williams L.J., that the growers had not a community of interest in the subject-matter of the action, but (agreeing with the rest of the Court) that, if the plaintiffs could maintain the action as representing a class, the Attorney-General must be made a party.
THIS action was brought by John Ellis, William Gray, Henry Miller, George Percy Ashby, Daniel Pullinger, and William Peacock “on behalf of themselves and all other the growers of fruit, flowers, vegetables, roots or herbs within the meaning of the Act 9 Geo. 4, c. cxiii.,” as plaintiffs, against the Duke of Bedford.
The Duke was the lord of Covent Garden Market, which was vested in him in fee simple; the Act referred to was passed in 1828 “for the improvement and regulation of Covent Garden Market.”
The Act by s. 3 authorized the then Duke, his heirs or assigns, being owners of the market, to take down the shops and other buildings then standing in the market, and to divide, arrange, and appropriate the site or area of the market in the manner shewn upon a plan deposited in the Parliament Office, and also to build such shops and other buildings as the Duke, his heirs or assigns, being owners of the market, should think fit on such parts of the market as were marked with the letter (A) in the plan.
Sect. 6 authorized the Duke, his heirs or assigns, being owners of the market, to let any of the shops, buildings, &c., to be erected by the year, or for any shorter period, and at such rents as they should think fit, to be used and occupied only by persons dealing in or selling fruit, flowers, vegetables, roots, seeds or herbs therein.
By s. 7, “The remainder of the said market shall, subject to the provisions hereinafter contained, be appropriated as follows, viz. (inter alia) —
“Those parts thereof which are marked respectively in the said plan with the letter (B) shall be divided into stands, which stands shall be called ‘the casual cart stands,’ and shall (except and subject as hereinafter mentioned) be exclusively appropriated to the reception of waggons and carts in which fruit, flowers, vegetables, roots, or herbs shall be brought to the said market for sale, and for the exposing to sale and selling such fruit, flowers, vegetables, roots, or herbs on the stand to which the same shall be brought, subject to such tolls or sums of money as are in the schedule to this Act in that behalf mentioned; and the growers of fruit, flowers, vegetables, roots, or herbs shall be deemed to be the persons having the preferable right to resort to such stands under the provisions of this Act.
“Those parts of the said market which are marked respectively in the said plan with the letter (C) shall be divided into stands, which stands shall be called ‘the yearly cart stands,’ and shall (except and subject as hereinafter mentioned) be exclusively appropriated to the reception of waggons and carts of or belonging to growers of fruit, flowers, vegetables, roots, or herbs, and to the exposing to sale and selling the fruit, flowers, vegetables, roots, or herbs grown or reared by such growers, and be let by the said Duke, his heirs or assigns, being owners of the said market, or their tenants thereof, by the year or for any shorter period, at such yearly or other rents, and subject to such tolls or sums of money, as are in the schedule to this Act in that behalf mentioned; and the person to whom any such stand shall be let shall be deemed to be the holder thereof, and the person having the preferable right to resort thereto, under the provisions of this Act.”
“Those parts of the said market which are marked respectively in the said plan with the letters (F and G) shall be divided into stands, which stands shall be called ‘the yearly pitching stands,’ and shall, except and subject as hereinafter mentioned, be exclusively appropriated to the exposing to sale and selling fruit, flowers, vegetables, roots, or herbs, and may be let by the said Duke, his heirs or assigns, being owners of the said market, or their tenants thereof, exclusively to growers of fruit, flowers, vegetables, roots, or herbs, by the year or for any shorter period, at such yearly or other rents, and subject to such tolls or sums of money, as are in the schedule to this Act in that behalf mentioned; and the person to whom any such stand shall be let shall be deemed to be the holder thereof, and the person having the preferable right to resort thereto, under the provisions of this Act.”
“And such appropriation shall take place and be made with respect to each part of the said market respectively, as and when such part shall be altered, according to the division and arrangement hereinbefore authorized to be made.”
Sect. 9: “After the said parts of the said market to be divided into the stands to be called the ‘yearly cart stands,’ shall be altered according to the division and arrangement hereinbefore authorized to be made, no waggon, cart, fruit, flowers, vegetables, roots, herbs, bulk, basket, package, hamper or other thing shall be placed or put in or upon any stand in those parts of the said market to be called ‘the yearly cart stands,’ which shall be let, but such as shall belong to or be the property of the holder of such stand, except as hereinafter mentioned; but it shall be lawful for any person to place or put any waggon or cart containing fruit, flowers, vegetables, roots, or herbs, or to place, pitch, expose for sale, or sell any fruit, flowers, vegetables, roots, or herbs, on any of the said stands to be called ‘the yearly cart stands,’ which shall not be let, such person paying, in respect of such placing, pitching, exposing for sale, or selling, the toll or tolls or sum or sums of money mentioned or specified in that behalf in the schedule to this Act; and no empty or unladen waggon or cart shall be placed or left on any of such stands until after twelve of the clock at noon.”
Sect. 14: “After the said parts of the said market to be divided into the stands to be called ‘the yearly pitching stands,’ shall be altered according to the division and arrangement hereinbe00000fore authorized to be made, no fruit, flowers, vegetables, roots, herbs, bulk, package, hamper, or other thing shall be placed or put in or upon any stand in those parts of the said market to be called ‘the yearly pitching stands,’ which shall be let, but such as shall belong to or be the property of the holder of such stand, except as hereinafter mentioned; but it shall be lawful for any person to place, pitch, expose for sale, or sell any fruit, flowers, vegetables, roots, or herbs on any of the said stands to be called ‘the yearly pitching stands,’ which shall not be let, such person paying, in respect of such placing, pitching, exposing for sale, or selling, the rent, toll or tolls, or sum or sums of money mentioned or specified in that behalf in the schedule to this Act.”
Sect. 17: “Notwithstanding anything hereinbefore contained, it shall be lawful for any person to place or put any waggon or cart containing any fruit, flowers, vegetables, roots, or herbs, and to place, pitch, expose for sale, or sell any fruit, flowers, vegetables, roots, or herbs, in or upon any stand in those parts of the said market to be called ‘the casual cart stands’ or ‘the yearly cart stands,’ whether such stand shall be let or not, for and during such time as such stand shall be unoccupied or vacant, but subject and without prejudice to the right of the growers having the preferable right under the provisions of this Act to resort to such stand as hereinbefore provided; which person so placing or putting such waggon or cart, or so placing, pitching, exposing for sale, or selling fruit, flowers, vegetables, roots, or herbs, on such stand, shall pay to the said Duke, his heirs or assigns, being owners of the said market, or their tenants thereof, such toll or sum of money as is mentioned or specified in that behalf in the schedule to this Act, and shall and is hereby required to remove from such stand the waggon, cart, goods, and other articles placed by him or her on such stand, when and so often as any person having a preferable right to resort to such stand under the provisions of this Act shall have occasion to occupy the same.”
Sect. 21: “From and after the passing of this Act it shall be lawful for the said Duke, his heirs or assigns, being owners of the said market, and their tenants thereof, to demand and take, or cause to be demanded and taken, of and from all and every person and persons who shall place, pitch, expose for sale, or sell within the said market any fruit, flowers, vegetables, roots, or herbs, all such toll or tolls as at the time of the passing the before-recited Act of the 53rd year of the reign of His late Majesty King George the third was or were usually taken or collected within...
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